Archived updates for Wednesday, March 01, 2006

US-TTAB Says No "B___S___" for Red Bull

Thanks to John Welch's TTABlog for pointing to In re Red Bull GmbH, Serial No. 75788830 (February 15, 2006) where the U.S. Trademark Trial and Appeal Board affirmed a Section 2(a) refusal to register "BULLSHIT" as a trademark for alcoholic and non-alcoholic beverages because applicant, Red Bull, failed to overcome the PTO's prima facie showing that the term "bullshit" is "offensive to the conscience of a substantial composite of the general public."

Administrative Trademark Judge Walters probably now knows more about BS than any lawyer could every hope. According to the decision:

In support of its position, applicant submitted the following definition of"bullshit" from WordNet 1.6 (Princeton University 1997) prior to appeal:

To supplement and clarify the above-quoted evidence submitted by applicant, we also take judicial notice of the definition of "bullshit" from the current edition (2.0) of Wordnet, available at www.wordnet.princeton.edu (January 3, 2006):

(n) bullshit, bull, Irish bull, horseshit, shit, crap, dogshit (obscene words for unacceptable behavior) "I put up with a lot of bullshit from that jerk"; "what he said was mostly bull"

(v) bullshit, bull, fake (talk through one's hat) "The politician was notwell prepared for the debate and faked it."

Additionally, applicant submitted a copy of an essay entitled "On Bullshit" by Harry Frankfurt, a professor of philosophy at Princeton University. The essay is essentially a philosophical discourse, with often humorousintent, on certain aspects of human communication and the connotation of the term "bullshit." Applicant contends that "a fair and objective reading of Professor Frankfurt’s essay recognizes that ‘bullshit’ cannot be seen, at least under today’s community standards, as an immoral or scandalous term"; that the essay by Dr. Frankfurt demonstrates that "bullshit" is "a subject worthy of scholarly examination"; and that the essay is "not in any sense intended to be scandalous or an affront to community standards."

Applicant submitted, with its request for remand, evidence regarding a Showtime cable network television show entitled "Penn & Teller: Bullshit!". The evidence includes press releases from Showtime’s own website announcing in 2003 a new series of thirteen programs. The remaining evidence consists of excerpts from the year 2003 from various websites (e.g., valleyadvocate.com, azreporter.com, Fredericksburg.com, lasvegasweekly.com, and newhavenadvocate.com) reviewing the "Penn & Teller: Bullshit!" program series. . .

. . . Finally, applicant argues that its mark "is an obvious play on the expression BULLS HIT, where a ‘Hit’ is a drink or, in some parlance, an inhale or ingestion of some substance – in this case one or more ‘Red Bulls’" (brief, p. 12).The mark for which registration is sought is an actual word and the examining attorney and applicant agree on the definition of the term. Applicant has provided absolutely no evidence supporting its statement that the term would be perceived by anyone as BULLS HIT rather than BULLSHIT; or that, if such was the case, that the phrase BULLS HIT would carry the connotation proposed by applicant. This argument is entirely unpersuasive.

. . . In sum, the evidence of record is sufficient to establish prima facie that the term "bullshit" is offensive to the conscience of a substantial composite of the general public and applicant’s evidence does not overcome the examining attorney’s prima facie showing. Therefore, we find that applicant’s mark consists of or comprises scandalous matter.

1 Comments:

Even in today's era of loosened restrictions, some phrases are still off-limits at the PTO. It is interesting to see how the rejections have changed over the years - things like BUBBY TRAP for bras probably wouldn't received offensive/scandalous rejections anymore.